Tbe questions for decision are: (1) Did the-court err in refusing to make “tbe estate of Icybinda Spauld-ing” and tbe special administrator of her estate parties de*281fendant? (2) Did tbe court err in refusing to make L. J. Morris, tbe busband of tbe defendant Addie Morris, a party defendant ?

We apprehend that there can be no doubt that tbe motions to make tbe “estate” a party defendant were properly denied. When these motions were made there was in existence no executor or administrator or any person on whom service could be made. Tbe theory on which it is claimed that tbe administrator is a necessary party is this: It is averred that Icy-binda Spaulding was indebted to Mrs. Morris, or to her and her busband, in a large sum for care and nursing; that such services were worth the amount of the note and mortgage, and that if these are held void and canceled the Morrises will have a legitimate claim against the estate for tbe value of such services; that Mrs. Spaulding distributed considerable money in gifts among her relatives before her death which should be used in paying debts if there were any, and in tbe event of tbe note and mortgage being held void it will be the duty of tbe administrator to collect such money from tbe distributees, to tbe end that it may be applied in payment of the debt which was supposed to be paid by the transfer of tbe note and mortgage. It is further claimed that the administrator has a valid defense to this action because tbe plaintiffs assumed the risk of tbe son and heir of Charles Spaulding making claim to tbe property purchased, by paying a reduced consideration therefor because of tbe eventuality which has occurred.

It is not claimed that the administrator has any defense to the plaintiffs’ cause of action that is not available to tbe defendant Addie Moms, so she is not injured in this regard by a failure to make tbe administrator a party. Counsel states that a complete determination of .the controversy cannot be had without tbe presence of the estate of Icybinda Spaulding' and that such estate is vitally interested in the controversy. Counsel fails to point out the reasons which support these *282statements. The controversy is over tbe right of the plaintiffs to have a note and mortgage canceled which plaintiffs assert was given without any consideration. The holder and legal owner of that note and mortgage is made a party defendant, and we fail to see why this controversy cannot be settled without the presence of the administrator of the estate of Mrs. Spaulding. Neither do we perceive why it is necessary to make the administrator a party for his protection. Under sec. 2610, Stats. (1898), tire court is required to bring in additional parties when a complete determination of the controversy cannot be made without them or when they have such an interest in the subject matter of the controversy that their due protection requires that they be brought before the court. Neither situation is presented in this case in so far as the administrator is concerned.

The practice pursued in endeavoring to make L. J. Morris■ a party defendant shows persistency to say the least. After an order was made denying the first motion counsel proceeded to ignore its existence and promptly applied for a second one, and after that application was denied, without asking to vacate either of the existing orders, made a third application. When the first application was before the court, it appeared fi’om the answer of Addie Morris and also from her deposition under sec. 4096, Stats., that the note and mortgage in suit were given to her in payment of services rendered by her for Mrs. Spaulding. It appeared from the affidavits filed by her and her husband in support of the motion that the note and mortgage were assigned to the defendant Addie Morris with the consent of her husband, and the only claim the latter makes in reference thereto is that he expects to receive some benefit from his wife from the proceeds of the security. There were facts before the court from which it might conclude that the assignment was made in payment of a debt due the wife and which was her separate property, or that if the *283husband had any claim against Mrs. Spaulding he made a gift to his wife of the amount due. Technically the court might have denied the second and third motions on the ground that there was a final order already made which the moving parties had not attempted to vacate, modify, or set aside. But we think the subsequent orders must stand when considered on the merits. The shifting of positions such as was made here should not be encouraged, and the court might well conclude that the one first taken was in accordance with the fact. Even after the shift was made, it is, to say the least, doubtful if the affidavits filed do not show that the money due for the services rendered for Mrs. Spaulding were the separate property of the wife. So approaching the question of the right of L. J. Morris to be made a party defendant from several different viewpoints, it is apparent that the order refusing the relief asked should not be disturbed by this court.

By the Court. — The orders appealed from are affirmed.